Lawsuit against Luther BBQ joint settled

By Grayson Schmidt Staff Writer gschmidt@amestrib.com

Monday

May 14, 2018 at 11:48 AMMay 14, 2018 at 10:28 PM

More than six months after it was filed, the lawsuit between two Luther residents and Whatcha Smokin? BBQ + Brew claiming that the restaurant was sitting on a residentially-zoned plot and that the restaurant’s septic tank is “trespassing” on their property, has been dismissed after the attorney for the plaintiffs, Aaron Ahrendsen, said the two parties settled with the restaurant buying the property.

The lawsuit — filed by Sean and Jacqueline McAlister — was filed in early October, and claimed the owners of Whatcha Smokin?, located at 403 Iowa Ave., in Luther, had encroached on the McAlisters’ land by building a retaining wall on their property.

The McAlisters alleged in the lawsuit that a portion of the septic tank and associated plumbing is located on the property and that the continued encroachment by Whatcha Smokin? amounted to trespassing.

According to Beacon online records, the McAlister’s former property, located at 410 Iowa Ave., was sold to Luther Investments LLC and Tanya Doyle for $145,000 in March.

The original lawsuit stated the property is regulated for zoning and land use by the city of Luther and is zoned a “restricted residence district.” The residents behind the lawsuit claim a “restricted residence district” does not allow the use of the property for a restaurant with a liquor license, and that the city of Luther ordinances define the restaurant of non-conforming use as a nuisance.

The McAlisters claimed Whatcha Smokin? — which opened earlier last summer — and its customers “created undue noise, offensive odors, offensive or undue smoke, unsightliness due to the appearance of the building or structure, and undue gathering and congregating.”

They also claimed customers had been parking vehicles on their property, which caused undue congestion of people or traffic and other activities which were obnoxious, offensive, dangerous or injurious to the health, welfare, and safety of the citizens of Luther.

Ahrendsen said after months of negotiating, he was pleased with the settlement, given the difficulty of proving nuisance cases in court.

“I think from the outset, the McAlisters were always looking to be able to get away from this place,” Ahrendsen said. “Specifically in this case, it would’ve been very unlikely that a judge would’ve said (to Whatcha Smokin?), ‘OK, you’re no longer able to use this property as a restaurant.’”

When asked if the McAlisters planned to move to another house in Luther or leave town, Ahrendsen said they planned on moving “preferably where they can’t see another house.”

Whatcha Smokin’ owners Ronald Lappe’s and Tanya Doyle’s attorney Bill Talbot said he was unsure of what the business was planning for the property, but he said he is glad that both parties were able to reach an agreement.

“It turned out good for everybody,” Talbot said.

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